# Smt. Jayantra Devi v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 383
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-09
- **Case number:** Writ C No. 32101 of 2022
- **Bench:** Mrs. Sunita Agarwal, Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jayantra-devi-v-state-of-u-p-ors-49825
- **Pages:** 17

## Headnote

A. Local body Law - Constitution of
India - Article 226, 243O & 243ZG -
Writ - Maintainability - Alternative
remedy - No confidence motion -
Validity thereof challenged - Objection
of
alternative
remedy
of
Election
petition - Permissibility - Held, as
regards the validity of the meeting
dated
30.09.2022
being
in
contravention of the provisions of S.
15 of the Act, 1961, the issue of
resultant
vacancy
being
dependent
upon
the
'No-confidence
motion',
cannot be subject matter of election
petition - In case, the challenge raised
by the petitioner to the validity of
meeting convened on 30.8.2022 is
sustained being in violation of the
mandatory
provisions
of
Section
15(3)(ii) of the Act, the resolution
passed on said date has to be quashed.
The result is that there would be no
removal of the petitioner and, thus, no
vacancy. The subsequent notification
dated 14.10.2022 has to fall on its own
-
High
Court
turned
down
the
objection regarding the maintainability
of the writ petition. (Para 10)

B. Local body Law - UP Kshettra
Panchayat and Zila Panchayat Act,
1961 - Sections15 (3) & (4B) - No
confidence motion against Pramukh -
Notice dated 23.08.2022 for convening
the meeting on 08.09.2022 was issued
by the D.M. - However, leave was
sought
by
the
Presiding
Officer
expressing inability due to illness of
his mother, which was duly granted -
Validity of adjourned meeting held on
30.09.2022 was challenged on the
ground
that
the
Notice
dated
23.08.2022 fixing 08.09.2022 would be
the mandatory valid notice of fifteen
days as per clause (ii) of Sub-Section
(3) of S. 15 of the Act, 1961 -
Permissibility - Motion carried out in
meeting
on
30.09.2022
-
Validity
challenged - Held, on account of the
unprecedented adverse situation faced
by the Presiding Officer to preside at
the meeting fixed by the Collector on
8.9.2022, the mere fact that he himself
did not adjourn the meeting or did not
fix the date and time of the meeting at
the time of adjournment itself but
intimated it later on assumption of his
office after leave, would not invalidate
the motion carried out in the meeting
held
on
30.9.2022.
The
defect in
adjournment of the meeting fixed on
8.9.2022, if any, in not fixing the date
and time of the adjourned meeting, is
curable. (Para 23 and 29)

Writ petition dismissed. (E-1)

List of Cases cited :-
384 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,938 of 58,700. This is a partial read: ask again with offset=39938 for what follows._

3 All. Smt. Jayantra Devi Vs. State of U.P. & Ors.
383
him, "within two years" "of the assumption
of office by the Pramukh" cannot be said to
be illegal. There is no merit in the
challenge.

60. All
the
writ
petitions
are,
accordingly, dismissed.
----------
(2023) 3 ILRA 383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2023

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Writ C No. 32101 of 2022

Smt. Jayantra Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Tripathi, Sri Rahul
Agarwal

Counsel for the Respondents:
C.S.C., Sri Aditya Kumar Singh, Sri Amit
Kumar Singh, Sri Tarun Agrawal, Ajit
Kumar Singh (A.A.G.), Sri Ashok Khare (Sr.
Advocate)

A. Local body Law - Constitution of
India - Article 226, 243O & 243ZG -
Writ - Maintainability - Alternative
remedy - No confidence motion -
Validity thereof challenged - Objection
of
alternative
remedy
of
Election
petition - Permissibility - Held, as
regards the validity of the meeting
dated
30.09.2022
being
in
contravention of the provisions of S.
15 of the Act, 1961, the issue of
resultant
vacancy
being
dependent
upon
the
'No-confidence
motion',
cannot be subject matter of election
petition - In case, the challenge raised
by the petitioner to the validity of
meeting convened on 30.8.2022 is
sustained being in violation of the
mandatory
provisions
of
Section
15(3)(ii) of the Act, the resolution
passed on said date has to be quashed.
The result is that there would be no
removal of the petitioner and, thus, no
vacancy. The subsequent notification
dated 14.10.2022 has to fall on its own
-
High
Court
turned
down
the
objection regarding the maintainability
of the writ petition. (Para 10)

B. Local body Law - UP Kshettra
Panchayat and Zila Panchayat Act,
1961 - Sections15 (3) & (4B) - No
confidence motion against Pramukh -
Notice dated 23.08.2022 for convening
the meeting on 08.09.2022 was issued
by the D.M. - However, leave was
sought
by
the
Presiding
Officer
expressing inability due to illness of
his mother, which was duly granted -
Validity of adjourned meeting held on
30.09.2022 was challenged on the
ground
that
the
Notice
dated
23.08.2022 fixing 08.09.2022 would be
the mandatory valid notice of fifteen
days as per clause (ii) of Sub-Section
(3) of S. 15 of the Act, 1961 -
Permissibility - Motion carried out in
meeting
on
30.09.2022
-
Validity
challenged - Held, on account of the
unprecedented adverse situation faced
by the Presiding Officer to preside at
the meeting fixed by the Collector on
8.9.2022, the mere fact that he himself
did not adjourn the meeting or did not
fix the date and time of the meeting at
the time of adjournment itself but
intimated it later on assumption of his
office after leave, would not invalidate
the motion carried out in the meeting
held
on
30.9.2022.
The
defect in
adjournment of the meeting fixed on
8.9.2022, if any, in not fixing the date
and time of the adjourned meeting, is
curable. (Para 23 and 29)

Writ petition dismissed. (E-1)

List of Cases cited :-
384 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Yadu Nath Pandey Vs District Panchayat Raj
Officer; 1986 UPLBEC 62

2. Kamla Devi Vs St. of U.P. & ors.; 2014 (2)
ADJ 327

3. Kamal Sharma Vs St. of U.P. & ors.; 2013
SCC Online All 8448

4. Kiran Singh Vs St. of U.P. & ors.; 2017 (5)
AWC 5096

5. Surendra Kumar Yadav Vs St. of U.P. & ors.;
2017 (3) AWC 2367 (LB)

6. Adesh Singh Yadav Vs Collector Bareilly; 2020
(5) ADJ 418

7. Niyazuddin Vs St. of U.P. & ors.; 2020 (1)
AWC 794

8. Hari Shankar Jain Vs Sonia Gandhi; 2008 (1)
SCC 233

9. Amar Nath Jaiswal Vs St. of U.P. & ors.; 1992
SCC Online

10. Aijaz Ahmad Vs Niyaz Ahmad & ors.; 1975
SCC Online All 111

11. Sardar Gyan Singh Vs D.M. Bijnore & ors.;
1975 SCC Online All 144

12. Akhilesh Kumar Katiyar Vs St. of U.P. & ors.;
2012 SCC Online All 4282

13. St. of U.P. Vs Manbodhan Lal Srivastava;
AIR 1957 SC 912

14. Raza Buland Sugar Co. Ltd. Rampur Vs the
Municipal Board, Rampur; AIR 1965 SC 895

15. Gyan Singh Vs the D.M., Bijnor & ors.; AIR
1975 Allahabad 315

16. Sharif-Ud-Din Vs Abdul Gani Lone; 16
(1980) 1 SCC 403

17. Vikas Trivedi Vs St. of U.P. & ors.; 2013 SCC
OnLine All 14264

18. Kiran Pal Singh Vs St. of U. P. & ors.; (2018)
7 SCC 521
19. Bhanumati & ors. Vs St. of U.P. Through Its
Principal Secretary & ors.; 19 2010 (12) SCC 1

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.
&
Hon'ble Vipin Chandra Dixit, J.)

1. Heard Sri Rahul Agarwal and Sri
Ashok Kumar Tripathi learned counsel for
the petitioner, Sri Ajit Kumar Singh learned
Additional Advocate General assisted by
Sri
Sudhanshu
Srivastava
learned
Additional Chief Standing Counsel for
State-respondents and Sri Ashok Khare
learned Senior Counsel assisted by Sri
Aditya Kumar Singh learned Counsel for
respondent No. 6.

2. This writ petitioner is challenging
the 'No-confidence motion' carried out
against her in the meeting held on
30.9.2022 as also the resultant notification
issued by the Election Commission of India
notifying the vacancy of the post of Block
Pramukh/Pramukh,
Kshettra
Panchayat
Haisar Bazar, District Sant Kabir Nagar.

3. The relevant facts to determine the
controversy at hands are that a notice to
bring 'No-confidence' motion against the
petitioner herein, signed by 76 members
out of total 99 members of the constituency
namely Kshettra Panchayat Haisar Bazar
was received by the District Magistrate,
Sant Kabir Nagar. The District Magistrate
by a notice dated 23.8.2022 called a
meeting to consider 'No-confidence motion'
on 8.9.2022. It is submitted by the learned
counsel for the petitioner that the said
notices were dispatched on 24.8.2022 by
registered post. The period between the
date of dispatch and the schedule date of
meeting being less than 15 days, 'Noconfidence motion' could not have been
3 All. Smt. Jayantra Devi Vs. State of U.P. & Ors.
385
carried out on the date fixed, i.e. 8.9.2022
in view of mandatory provisions of Section
15(3)(ii) of the U.P. Kshettra Panchayats
and Zila Panchayats Adhiniyam, 1961
(hereinafter referred to as "the Act, 1961").

4. It is an admitted fact of the matter
that the meeting could not be convened on
8.9.2022. It was adjourned on account of an
emergency leave applied by the SubDivisional Officer, Dhanghata, District
Sant Kabir Nagar who was to preside over
the
meeting.
The
emergency
leave
application dated 6.9.2022 was moved by
the Presiding Officer due to ill health of his
mother with the prayer that he may be
permitted to leave the station to go to
District Meerut. Another leave application
dated 7.9.2022 was moved by the Presiding
Officer for extension of leave till 11.9.2022
due to prolonged illness of his mother. The
leave was duly granted to the SubDivisional Officer, Dhanghata, Sant Kabir
Nagar namely the Presiding Officer as per
the service rules, by the competent
Authority.

The District Magistrate, Sant
Kabir Nagar has issued an office order
dated 7.9.2022 intimating that the meeting
of 'No-confidence' scheduled on 8.9.2022
could not be held due to unavoidable
circumstances and had been postponed.
Further,
the
Sub-Divisional
Officer,
Dhanghata/the Presiding Officer intimated
the District Magistrate, Sant Kabir Nagar
by the letter dated 15.9.2022 that the next
date of the meeting was fixed on 30th
September, 2022 to be held at 11:30 AM in
the meeting hall in the office of Kshettra
Panchayat, Haisar Bazar. The intimation of
the date fixed of the meeting had been
given to all the members, Kshettra
Panchayat and the minutes of the meeting
dated 30.9.2022, the result of the voting,
shows that out of total 99 members, 95 had
participated in the meeting and exercised
their franchise. Out of 95 votes, 72 were in
favour of ''No-confidence motion' and
hence it was passed with the strength of
more than 50% of the members present and
voting.

There is no dispute about the
above noted facts. Sri Rahul Agarwal
learned
Advocate
appearing
for
the
petitioner, however, argued that the initial
notice dated 23.8.2022 fixing 8.9.2022 for
the meeting was dispatched on 24.8.2022
and hence the mandatory requirement of 15
days of intimation of the date fixed for
meeting had not been fulfilled. Two
terminal days, i.e. the first and the last date,
i.e. the date of dispatch of notice and the
date fixed for meeting have to be excluded
from the time to be reckoned for
compliance of Sub-Section (3) of clause (ii)
of Section 15 of the Act, 1961.

Reliance
is
placed
on
the
decisions of this Court in Yadu Nath
Pandey vs. District Panchayat Raj
Officer1; Kamla Devi vs. State of U.P.
and others2; Kamal Sharma vs. State of
U.P. and other3; Kiran Singh vs. State of
U.P. and others4; Surendra Kumar
Yadav vs. State of U.P. and others5;
Adesh
Singh
Yadav
vs.
Collector
Bareilly6 and Niyazuddin vs. State of
U.P. and others7 to assert that 15 days
clear notice is mandatory in terms of
Section 15(3)(ii) and non-compliance of the
said provision would vitiate the proceeding.

5. The contention is that since the
initial notice dated 23.8.2022 (dispatched
on 24.8.2022) was bad in law, the
subsequent adjournment of meeting and the
motion carried out on 30.9.2022 within the
extended time provided under Sub-Section
(4-B) of Section 15 would have to be held
bad in law. The entire proceeding being in
386 INDIAN LAW REPORTS ALLAHABAD SERIES
contravention of the provisions of Section
15 of the Act, 1961. It is argued that the
provisions
of
Section
15(3)(ii)
are
mandatory in nature and any violation
thereof is not curable defect and cannot be
rectified by adjournment of the meeting
scheduled on 8.9.2022.

Moreover, as per Sub-Section (4B), the Officer who is to preside at such
meeting is to record his reasons for
adjournment of the meeting, if he is unable
to
preside
at
such
meeting.
While
adjourning such meeting, he has to fix the
date and time which shall not be later than
25 days for the date appointed for such
meeting. The requirement of Sub-Section
(4-B), thus, is that only the Presiding
Officer himself can adjourn the scheduled
meeting by fixing date and time of the
adjourned meeting recording reasons for
his inability to preside at such meeting. The
intimation by the Collector of the next
meeting as per Sub-Section (4-B) of
Section 15 is, thus, followed by the
intimation given by the Presiding Officer of
the date and time of the adjourned meeting.
The recording of reasons and fixing date
and time of the adjourned meeting are
simultaneous acts to be performed by the
Presiding
Officer.
The
deferment
of
meeting on 7.9.2022 with the office order
issued by the District Magistrate, thus, is in
contravention of the provisions of Section
4-B of the Act, 1961. Further the meeting
dated 30.9.2022 has been held under the
directions issued by this Court in the order
dated 13.9.2022. The Presiding Officer
himself failed to follow the mandatory
procedure of adjournment. The contention
is that the Executive Authorities namely the
Presiding Officer and the Collector had
given the provisions of Section 15 to a toss
to buy time to hold the meeting as an
adjourned meeting. The result of such an
illegally convened meeting cannot be
sustained in the eyes of law.

6. The submission, thus, is that since
the entire process of carrying out 'Noconfidence motion' in the meeting held on
30.9.2022
was
per
se
illegal.
The
consequent vacancy and the notification
issued by the State Election Commission,
U.P., Lucknow dated 14.10.2022 for the
post of Pramukh Kshettra Panchayat are
also liable to be set aside. The submission
is that the vacancy cannot be presumed to
be validly existing if the meeting itself was
invalid
and
the
consequential
'Noconfidence motion' is illegal, as any
consequential election is dependent upon
the result of the 'No-confidence motion'.

7. Sri Ashok Khare learned Senior
Counsel assisted by Sri Aditya Kumar
Singh learned Advocate for respondent No.
6 has challenged the maintainability of the
writ petition with the assertion that in view
of the second prayer made in the present
writ petition, challenging the notification
issued by the State Election Commission
with the election of respondent no. 6, the
only remedy before the petitioner is to file
an election petition as issue of validity of
the election can be raised only by way of an
election petition in view of the bar under
Article 243-O read with Article 243ZG of
the Constitution of India. The writ petition
is, thus, liable to be dismissed as not
maintainable.

Reliance
is
placed
on
the
decisions of the Apex Court in Hari
Shankar Jain vs. Sonia Gandhi8; Amar
Nath Jaiswal vs. State of U.P. and
others9 and of this Court in Aijaz Ahmad
vs. Niyaz Ahmad and others10; Sardar
Gyan Singh vs. District Magistrate
Bijnore and others11 and Akhilesh
3 All. Smt. Jayantra Devi Vs. State of U.P. & Ors.
387
Kumar Katiyar vs. State of U.P. and
others12 to substantiate the said assertion.

8. Learned Standing Counsel for the
State respondents, however, has relied upon
the averments in the personal affidavit of
the District Magistrate, Sant Kabir Nagar to
assert that there is no infirmity in the
process of carrying out 'No-confidence
motion'. The meeting was validly held on
30.9.2022 and the fact that 95 out of 99
members had participated in the meeting
prove that information giving adequate
time had been given to all the members.
With regard to the meeting scheduled on
8.9.2022, it is submitted that the District
Magistrate, Sant Kabir Nagar on receipt of
the notice of intention to move the motion
of 'No-confidence' against the petitioner,
signed by 76 members of Kshettra
Panchayat along with the notary affidavit
on 22.8.2022, had formed a Committee
comprising
of
three
officers
for
scrutiny/verification of signatures/thumb
impressions on the said written notice. All
76 members of Kshettra Panchayat Haisar
Bazar who signed the written notice of
intent dated 22.8.2022 were asked to
present their credible and attested identity
cards for verification of their signatures on
the notice as also the affidavits filed by
them, on 23.8.2022 at about 3:00 PM. On
prima
facie
satisfaction
of
the
signatures/thumb
impressions
of
76
members,
three
Member
Committee
recorded satisfaction of matching of
signatures on the written notice of intent
dated 22.8.2022 and the notary affidavits.
The District Magistrate then directed the
Sub-Divisional Officer, Dhanghata, Sant
Kabir Nagar to preside at the meeting
scheduled on 8.9.2020 at 11:30 AM at the
designated place mentioned therein by
issuing a letter dated 23rd August, 2022.

Simultaneously,
notices
were
issued to 99 members on 23rd August,
2022 giving them intimation of the date
fixed for motion of 'No confidence' on
8.9.2022 at 11:00 AM and the designated
place
of
the
meeting.
The
Block
Development Officer was directed to serve
notice to all 99 members and submit a
report. Vide letter dated 24.8.2022, the
Block
Development
Authority
had
submitted a report that out of 99 members,
78 had received the notice and out of
remaining 21, the notice was pasted at the
conspicuous places of the house of 15
members. The remaining members had
assured to receive notice within one or two
days. It is submitted by the learned
Standing Counsel that adjournment of the
meeting scheduled on 8.9.2022 was on
account of unavoidable circumstances
faced by the Presiding Officer and on the
intimation given by the Presiding Officer,
the District Magistrate had issued the
Office Order dated 7.9.2022 intimating the
reason for adjournment of the date fixed.
The intimation about the date and time
fixed for the meeting as 30.9.2022 at 11:30
AM was sent by the Presiding Officer to
the District Magistrate pursuant to which
the notices were sent and received by the
members. No infirmity, therefore, can be
attached to the 'No-confidence motion'
carried out on 30.9.2022.

9.

Dealing
with
the
above
submissions of the learned counsels for the
parties, we are required to first deal with
the submissions of Sri Ashok Khare learned
Senior Advocate for the respondent no. 6
about the maintainability of the writ
petition, on the plea that the writ petition
challenging the no confidence motion
cannot be entertained as after election as
against the vacancy, the only remedy before
388 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner is to challenge the election
petition.

10. Dealing with this submission,
suffice it to note that the issue raised in the
present writ petition is about the validity of
the 'No-confidence motion' carried out in
the meeting held on 30.9.2022 against the
petitioner herein. As regards the validity of
the same being in contravention of the
provisions of Section 15 of the Act, 1961,
the issue of resultant vacancy being
dependent
upon
the
'No-confidence
motion', cannot be subject matter of
election petition. Suffice it to note that the
vacancy cannot be presumed to be existing
if the meeting itself was invalid and the
consequent
'No-confidence
motion'
is
illegal. The consequential election against
the resultant vacancy if found illegal,
would itself fall. The vacancy in the present
case undoubtedly occurred on account of
the motion having been passed on the
strength of a meeting, validity of which is
subject matter of challenge herein. The
filling up of such a vacancy is dependent
upon the availability of the vacancy itself,
which arises out of the 'No-confidence
motion'. In our opinion, the question of
validity of 'No-confidence motion' or the
consequent vacancy occurring after the
meeting held on 30.9.2022 cannot be
subject matter of an election petition.
Further on the date when the present writ
petition has been filed, only the notification
dated 14.10.2022 was issued by the State
Election Commission and the date fixed for
voting was 21st October, 2022. The lis
before the Court was about the validity of
the 'No-confidence motion' and notification
of the consequent vacancy by the State
Election
Commission.
In
case,
the
challenge raised by the petitioner to the
validity of meeting convened on 30.8.2022
is sustained being in violation of the
mandatory provisions of Section 15(3)(ii)
of the Act, the resolution passed on said
date has to be quashed. The result is that
there would be no removal of the petitioner
and, thus, no vacancy. The subsequent
notification dated 14.10.2022 has to fall on
its own. The view taken by us is supported
with the decision of the Division Bench of
this Court in Kamla Devi (supra).

The
objection
as
to
the
maintainability of the writ petition, for
invoking jurisdiction under Article 226 of
the Constitution of India, thus, is liable to
be turned down.

11. Coming on the merits of the
instant case, in order to deal with the
contentions of the learned counsel for the
petitioner, we are required to look to the
scheme of the Act. The procedure for
carrying
out
'No-confidence
motion'
provided under Section 15 of the Act, 1961.

12. Before adverting to the provisions
of the Act, we may note that to decide the
question as to whether the statutory
provisions are mandatory or directory in
nature, no universal rule can be laid down.
The use of the word "shall" or "may" is
also not a decisive factor in determining
this question. In considering the question,
the purpose and the object of the provision
as contained in the statute, the setting and
the context in which the provisions occur
and the purpose which is sought to be
achieved by the provisions and the
legislative intent in making the provision
are necessary to be considered. [Reference
State of U.P. vs. Manbodhan Lal
Srivastava13]

In Raza Buland Sugar Co. Ltd.
Rampur
vs.
the
Municipal
Board,
Rampur14, while considering this question
3 All. Smt. Jayantra Devi Vs. State of U.P. & Ors.
389
at length, certain principles were laid down
which are relevant to be noted as under:-

"Para 7 The question whether a
particular provision of a statute which on
the face of it appears mandatory, inasmuch
as it uses the word "shall" as in the present
case-is merely directory cannot be resolved
by laying down any general rule and
depends upon the facts of each case and for
that purpose the object of the statute in
making the provision is the determining
factor. The purpose for which the provision
has been made and its nature, the intention
of the legislature in making the provision,
the serious general inconvenience or
injustice to persons resulting from whether
the; provision is read one way or the other,
the relation of the particular provision to
other provisions dealing with the same
subject and other considerations which
may arise on the facts of a particular case
including the language of the provision,
have all to be taken into account in
arriving at the conclusion whether a
particular provision is mandatory or
directory."

13. Before a Full Bench of this Court
in
Gyan
Singh
vs.
the
District
Magistrate, Bijnor and others15, the
question was referred as to whether the
second part of sub-Section (3) of Section
87A of the U.P. Municipalities Act, 1916
which provides the procedure for sending
notice of meeting for consideration of ''Noconfidence
motion'
by
the
District
Magistrate is mandatory or directory.

Considering the principles laid
down in Raza Buland Sugar Co. Ltd.
Rampur (supra), having gone through the
scheme of the said statute, the setting and
the context in which the provisions occur
and the purpose which is sought to be
achieved by the provisions, it was held
therein that though the first part of SubSection (3) of Section 87-A which requires
the District Magistrate to convene meeting
of the Board for considering the motion of
No-confidence against a President is
mandatory. The District Magistrate is
required to perform a public- duty in
convening a meeting of the Board for
consideration of the motion at the office of
the Board on the date and time as fixed by
him, he has no choice in the matter. He has
to convene a meeting on a date within 30
and 35 days from the date of presentation
of the motion to him. The District
Magistrate is further enjoined to perform a
public duty of sending notice of the
meeting to the members, this again is a
mandatory requirement of law which must
be strictly complied with. But the second
part of the Sub-Section (3) of Section 87-A
which lays down the manner required to be
followed in sending notices to the members
and lays down that notice of the meeting
shall be sent by registered post to every
member of the Board at his place of
residence, is directory. It was observed that
the essence of this provision is to give
information to the members to enable them
to avail opportunity of participating in the
meeting convened for the purpose of
considering the ''No-confidence motion'. It
was held that the first part of Sub-Section
(3) of Section 87-A requiring the District
Magistrate to convene meeting and to send
notices to the members being mandatory,
any disregard of that provision would
defeat the very purpose of the meeting.
However, the manner of service of notice
and publication of the same being directory
in nature, a substantial compliance of the
same would meet the requirement of law. It
is held therein that the purpose of service of
notice by registered post and publication of
the notice otherwise is to ensure that
members should get adequate notice, of the
390 INDIAN LAW REPORTS ALLAHABAD SERIES
meeting to enable them to participate in the
debate over the ''No-confidence motion' at
the meeting. That purpose is not defeated if
the notice is sent to the members not by
registered post but by other methods and
seven clear days are given to the members.
The legislature never intended that unless
notice is sent by registered post to the
members, the proceedings of the meeting
would be vitiated.

14. In Sharif-Ud-Din vs. Abdul Gani
Lone16, it was held that the difference
between a mandatory rule and a directory
rule is that while the former must be strictly
observed, in the case of the latter
substantial compliance may be sufficient to
achieve the object regarding which the rule
is
enacted.
The
broad
propositions
regarding the rules of construction that
should be followed in determining whether
a provision of law is directory or
mandatory have been summarised as
under:-

"Para 9. ...xxxxxxxx...The fact
that the statute uses the word 'shall' while
laying down a duty is not conclusive on the
question whether it is a mandatory or
directory provision. In order to find out the
true character of the legislation, the Court
has to ascertain the object which the
provision of law in question is to subserve
and its design and the context in which it is
enacted. If the object of a law is to be
defeated by non-compliance with it, it has
to be regarded as mandatory. But when a
provision of law relates to the performance
of any public duty and the invalidation of
any act done in disregard of that provision
causes serious prejudice to those for whose
benefit it is enacted and at the same time
who have no control over the performance
of the duty, such provision should be
treated as a directory one. Where however,
a provision of law prescribes that a certain
act has to be done in a particular manner
by a person in order to acquire a right and
it is coupled with another provision which
confers an immunity on another when such
act is not done in that manner, the former
has to be regarded as a mandatory one. A
procedural rule ordinarily should not be
construed as mandatory if the defect in the
act done in pursuance of it can be cured by
permitting appropriate rectification to be
carried out at a subsequent stage unless by
according such permission to rectify the
error later on, another rule would be
contravened. Whenever a statute prescribes
that a particular act is to be done in a
particular manner and also lays down that
failure to comply with the said requirement
leads to a specific consequence, it would be
difficult to hold that the requirement is not
mandatory and the specified consequence
should not follow."

15. A Full Bench of this Court in
Vikas Trivedi vs. State of U.P. &
others17 has considered the questions
about the validity of the notice sent by the
Collector under Section 15(2) and (3) of the
Act, 1961 as follows:- (i) whether the
notice can be held invalid because the copy
of the notice with the names of persons
who had signed the written notice of their
intention to bring motion of No-confidence
was not sent along with the same; (ii)
whether the notices convening the meeting
can be invalidated merely on the ground
that some pages of the proposed motion
containing signatures of some members
only were not included in the copy of the
proposed motion of no confidence sent
along with the said notice.

As regards the earlier decision of
the Full Bench in Gyan Singh (supra), an
issue was raised with regard to the
3 All. Smt. Jayantra Devi Vs. State of U.P. & Ors.
391
relevance of the said decision after
insertion of Part IX-A of the Constitution of
India by 74th Amendment Act, 1992.
Considering the constitutional scheme in
Articles 243P to 243ZG regarding the
Municipalities, it was held by the Full
Bench in Vikas Trivedi (supra) that the
interpretation of Section 87-A of the U.P.
Municipalities Act, 1916 by the Full Bench
in Gyan singh (supra) is very much
relevant and in no manner its precedencial
value can be ignored after 74th Amendment
of the Constitution.

16. Further having gone through the
relevant statutory provisions, the principles
of
statutory
interpretation,
it
was
considered as to whether the requirement of
sending the notice in accordance with the
prescribed proforma with annexures is
mandatory and non-compliance of the same
would vitiate the entire proceeding.

It was further held that "As noted
above, Section 15 of the 1961 Act is a
statutory provision recognising the right of
elected members to bring motion of no
confidence against the Pramukh. The
Collector is entrusted with public duty to
issue notice. As noted above, the Apex
Court in Dattaraya Moreshwar vs. the
State of Bombay and others case (supra)
had laid down that provisions of statute
creating public duty are directory and those
conferring private rights imperative. If the
contention is accepted that while sending
notice by the Collector although relevant
information regarding date, time and place
of meeting has been given and notice also
mentions that no confidence motion has
been proposed against such and such
officer bearers but the copy of the motion of
no confidence is not annexed, whether the
same shall frustrate the very object of the
Act or shall advance the object and
purpose of the statutory provision, is the
question to be answered. Obviously, if the
members are given notice and information
which is primary object and purpose of
giving notice by the Collector of the
meeting and the motion of no confidence is
read as soon as the meeting is convened,
we are of the view that to hold that not
sending of copy of no confidence motion
shall vitiate the entire proceeding, shall be
defeating the very purposes and object of
Section 15 of the 1961 Act. "

The ratio of the judgment of the
Apex court in Raza Buland Sugar Co.
Ltd. Rampur (supra) has been held to be
applicable for interpretation of Section 15
of the Act, 1961 and considering the
provisions of Section 15(3) of the 1961
Act, it was held that the manner of sending
notice in the prescribed proforma as per the
rules framed under the Act, 1961 cannot be
said to be mandatory, breach of which shall
vitiate the entire proceeding. It was held
that the proceeding of ''No-confidence
motion' shall be carried out if there is a
substantial compliance of the provisions of
Rule 2 read with Form-2, the prescribed
format of sending notice under the rules.
The substantial compliance of the said
provision shall not vitiate the proceeding of
No-confidence.

17. It was, thus, held that:- (1) The
requirement of giving notice by the
Collector under Section 15(3)(ii) in the
prescribed form as required by Rule 2 and
Form-2 is not mandatory and on substantial
compliance
of
the
provisions,
the
proceedings shall not be vitiated. However,
the question whether there has been
substantial compliance of the said provision
would
depend
on
the
facts
and
circumstances of each case. It was, thus,
concluded that when proposed motion of
No-confidence is signed by the requisite
392 INDIAN LAW REPORTS ALLAHABAD SERIES
members, the notice convening the meeting
cannot be invalidated merely on the ground
that some pages of the proposed motion
containing signatures of some members
only, were sent along with the notice.

18. In Kiran Pal Singh vs. State of
Uttar Pradesh and others18, the Apex
Court was considering a challenge to the
second notice of No-confidence motion, at
the instance of an elected Pramukh Kshettra
Panchayat. In the facts of that case, an
application under Section 15(2) of the U.P.
Kshettra Panchayat and Zila Panchayat
Adhiniyam, 1961 intimating intention to
bring No-confidence motion against a
Pramukh was received by the District
Magistrate/Collector
of
the
District
concerned. As no action was taken by the
District Magistrate/Collector, one of the
applicants moved the High Court at
Allahabad seeking a direction to the Collector
to accept the notice under Section 15(2) of
the Act and to take appropriate steps for
bringing the proceeding of the No-confidence
motion to its logical end. During pendency of
the said writ petition, another written notice
of intention to make the motion of Noconfidence was delivered to the District
Magistrate/Collector
concerned.
The
Collector issued notice to convene a meeting
of Kshettra Panchayat for consideration of
the motion of No-confidence at the date and
time fixed therein in the office of Kshettra
Panchayat. The No-confidence motion was
carried out after casting of votes. The elected
Pramukh Kshettra Panchayat against whom
No-confidence motion was carried out
assailed the second notice on the foundation
of statutory impermissibility during pendency
of the first notice. It was contended therein
that during pendency of first notice, second
notice could not have been issued and the
meeting could not be carried out as per the
provisions of sub-Section (2) of Section 15.

19. Having considered the scheme of
sub-Section (2) of Section 15, it was held
by the Apex Court therein that on receipt of
a written notice of intention to make the
No-confidence motion in such form as may
be prescribed, signed by at least half of the
total number of elected members of
Kshettra Panchayat for the time being
together with a copy of the proposed
motion, to be delivered in person, by any
one of the members signing the notice, to
the Collector having jurisdiction over the
Kshettra Panchayat, the requirement under
sub-Section (3) to convene the meeting by
the Collector is fulfilled. At this stage, the
jurisdiction that the Collector is only to
scan the notice to find out whether it fulfills
the essential requirements of a valid notice.
The exercise of the said discretion, is
summary in nature and there cannot be a
detail inquiry with regard to the validity of
the notice. Sub-Section (3) of Section 15
mandates that a meeting has to be convened
not later than 30 days from the date of
delivery of the notice and further there
should be at least 15 days' notice to be
given to all the elected members of the
Kshettra
Panchayat.
The
Collector,
therefore, has no power to enter into an
arena to record a finding on seriously
disputed questions of facts relating to fraud,
undue influence or coercion. His only duty
is to determine whether there has been a
valid notice as contemplated under SubSection (2) of Section 15. His delving deep
to conduct a regular inquiry would frustrate
the provision. He must function within his
own limits and leave the rest to be
determined in the meeting. The submission
that once a notice was given under Section
15(2), another notice of no confidence
should not be received until after expiration
of one year, was turned down being without
any substance, inasmuch as, the prohibition
under Section 15(12) would come into play
3 All. Smt. Jayantra Devi Vs. State of U.P. & Ors.
393
only when there is a meeting and the
motion is "not carried out" as per the
provisions of Section 15 or meeting could
not be held for want of quorum.

20. Taking note of the above decisions
laying down principles for determination of
the nature of the statutory provisions being
mandatory or directory, the scheme of the
Articles 243 to 243-O in Part IX of the
Constitution which require for Constitution
of Panchayats in every State at the village
and district level in accordance with the
provisions of Part IX, it was observed
therein
that
Article
243(d)
defines
''Panchayat' to mean an institution (by
whatever name called) of self-government
(constituted under Article 243B) for the
rural areas. The said articles ignited the
spirit of self-governance in the pyramidical
structure of local self-government. The
purpose as envisioned in conferring power
of
governance
in
the
democratically
organized units is to instill a sense of
satisfaction in the people at the grass root
level.

The observation of the Apex
Court in Bhanumati and others vs. State
of Uttar Pradesh Through Its Principal
Secretary and others19 while considering
the 73rd Constitutional Amendment in
paragraph '26' has been noted therein as
under:-

"26. What was in a nebulous state
as one of Directive Principles under Article
40,
through
73rd
Constitutional
Amendment metamorphosed to a distinct
part of Constitutional dispensation with
detailed provision for functioning of
Panchayat. The main purpose behind this is
to ensure democratic decentralization on
the Gandhian principle of participatory
democracy so that the Panchayat may
become viable and responsive people's
bodies as an institution of governance and
thus it may acquire the necessary status
and function with dignity by inspiring
respect of common man. In our judgment,
this 73rd Amendment of the Constitution
was introduced for strengthening the
perambular
vision
of
democratic
republicanism which is inherent in the
constitutional framework."

21. Considering the purpose of the
statutory
scheme
framed
under
U.P.
Kshettra Panchayat and Zila Panchayat
Adhiniyam, 1961, the Apex Court in Kiran
Pal Singh (supra) delve into the scheme of
Article 243-243O. It was noted that the
source of power on the States to frame law,
thus,
has
been
incorporated
in
the
Constitution. The legislations made by the
State legislatures, inter alia, have fixed the
tenure of the panchayats and also grant
protection for continuance of the elected
members subject to the disqualifications
and further the method for vote of Noconfidence. The provisions of Sub-Section
(13) of Section 15 which provides that no
notice of a motion under Section 15 shall
be received within the time prescribed
therein, from the assumption of office by a
Pramukh is in consonance with the
principle of stability of rural governance.
There are provisions for removal in case of
misconduct by an elected person. The
statutory scheme, thus, has been framed to
bring stability in the governance at the
grass root level in furtherance of the
principles of democratic decentralisation of
Governmental functions. It also provides
that the democracy at the rural level must
cherish the values of democracy and,
therefore, a Pramukh can be removed when
a vote of No-confidence is passed against
him and once the No-confidence motion
fails, it cannot be brought again for one
year.
394 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Considering the above principles
of construction of statute as mandatory or
directory and the statutory scheme as
envisaged by the State Legislature as
discussed in Kiran Pal Singh (supra), we
are required to note the procedure for
carrying out No-confidence motion as laid
down in Section 15 of the Act, 1961 which
reads as under:-

"15. Motion of non-confidence
in Pramukh or [***] (1) A motion
expressing want of confidence in the
Pramukh or any [***] of a Kshettra
Panchayat may be made and proceeded
with in accordance with the procedure laid
down in the following sub-sections.

(2) A written notice of intention to
make the motion in such form as may be
prescribed, singed by at least half of the
total number of elected members of the
Kshettra Panchayat for the time being
together with a copy of the proposed
motion, shall be delivered in person, by any
one of the members signing the notice, to
the Collector having jurisdiction over the
Kshettra Panchayat.

(3)
The
Collector
shall
thereupon-

(i) convene a meeting of the
Kshettra Panchayat for the consideration
of the motion at the office of the Kshettra
Panchayat on a date appointed by him,
which shall not be later than thirty days
from the date on which the notice under
sub-section (2) was delivered to him; and

(ii) give to the elected members of
the Kshettra Panchayat notice of not less
than fifteen days of such meeting in such
manner as may be prescribed.

Explanation- In computing the
period of thirty days specified in this subsection, the period during which a stay order,
if any, issued by a Competent Court on a
petition filed against the motion made under
this section is in force plus such further time
as may be required in the issue of fresh
notices of the meeting to the members, shall
be excluded.

(4) The sub-divisional officer of the
sub-division in which the Kshettra Panchayat
exercises jurisdiction shall preside at such
meeting: